Smt Yamuna vs Sri Siddalingakumar D R
2023 Latest Caselaw 4182 Kant

                                       -1-
                                             NC: 2023:KHC:23685-DB
                                                   MFA No. 455 of 2018




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 10TH DAY OF JULY, 2023

                                    PRESENT
                     THE HON'BLE MR JUSTICE ALOK ARADHE
                                      AND
                THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
               MISCELLANEOUS FIRST APPEAL NO. 455 OF 2018 (FC)
              BETWEEN:

              SMT YAMUNA,
              W/O SIDDALINGAKUMAR D R,
              D/O RENUKAPPA, AGED ABOUT 31 YEARS,
              R/AT OPPOSITE TO WATER TANK,
              SARASWTHIPUAM, TUMKURU,
              TUMKURU DISTRICT - 572105.
                                                       ...APPELLANT
              (BY SMT/MISS AISHWARYA HEGDE M.V, ADVOCATE FOR
              SRI. SANTOSH R NELKUDURI, ADVOCATE)

              AND:
              SRI SIDDALINGAKUMAR D R,
Digitally     S/O REVANNASIDDAPPA, AGED ABOUT 40 YEARS,
signed by     R/AT 3RD CROSS, SRINAGAR EXTENSION,
PRAMILA G V   2ND MAIN, KYATHASANDRA,
Location:     TUMAKURU DISTRICT 578101.
HIGH COURT
                                                     ...RESPONDENT
OF
KARNATAKA     (BY SRI. ARUN K R, ADVOCATE)

                   THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS
              ACT, AGAINST THE JUDGMENT AND DECREE DATED
              04.11.2017 PASSED IN M.C.NO.324/2013 (MC.NO.93/2011)
              ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT,
              TUMAKURU, ALLOWING THE PETITION FILED U/S 12 OF HINDU
              MARRIAGE ACT.

                  THIS APPEAL COMING ON FOR HEARING THIS DAY,
              ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:
                                -2-
                                     NC: 2023:KHC:23685-DB
                                           MFA No. 455 of 2018




                          JUDGMENT

This appeal is filed under Section 19(1) of the Family

Courts Act, 1984 (hereinafter referred to as the 'Act' for short)

challenging the judgment and decree dated 04.11.2017 passed

by the Family Court, Tumakuru in M.C.No.324/2013. In terms

of the impugned judgment and decree, the petition filed by the

husband seeking a decree of nullity of marriage under Section

12 of the Hindu Marriage Act, 1955 (hereinafter referred to as

the 'Act, 1955' for short) is allowed and the Court has held that

the marriage solemnised between the husband and wife on

13.03.2011 is null and void.

2. Aggrieved by the judgment and decree, the wife is in

appeal.

3. The parties to the proceeding are referred to as the

husband and wife for the sake of convenience.

4. The husband has filed the petition on the premise that

the marriage solemnised on 13.03.2011 is null and void as the

wife is suffering from physical deformity and she is incapable of

having a relationship where the marriage would consummate.

NC: 2023:KHC:23685-DB MFA No. 455 of 2018

It is also his contention that the wife has treated the husband

with cruelty and has referred to a few instances of alleged

cruelty.

5. The wife has contested the petition and she has

denied the allegations as regards physical deformity and has

taken a stand that the marriage is consummated. The wife has

also made counter-allegations against the husband that the

husband has ill-treated her.

6. The Family Court has framed issues based on the

pleadings presented before it.

7. The husband to substantiate his contentions

relating to the incapacity of the wife as stated above has

examined the doctors as PWs 2 and 3 apart from examining

himself as PW1 and has produced 47 documents marked as

Ex.P.1 to Ex.P.47. The wife has examined herself as RW1 and

she has not produced any document.

8. The Family Court after considering the materials on

record has concluded that the marriage is not consummated

and accordingly, allowed the petition under Section 12 of the

NC: 2023:KHC:23685-DB MFA No. 455 of 2018

Act, 1955 holding that the marriage between the husband and

wife is null and void. Aggrieved by the judgment and decree,

the wife is in appeal.

9. Heard the learned counsel appearing for the wife as

well as the learned counsel appearing for the husband.

10. Learned counsel appearing for the wife submitted

that the PW2 is a competent doctor and he has examined the

wife and according to the evidence of PW2, the wife is capable

of discharging marital obligation and there is no physical

deformity as alleged. Learned counsel appearing for the wife

also contended that evidence of PW2 has been wrongly rejected

by the Family Court. By referring to the evidence of PW-2, it is

urged that evidence demonstrate that the wife is capable of

leading normal marital life and the marriage is consummated

and there is no physical deformity as held by the Family Court.

It is also her contention that evidence of PW3- another doctor

who is examined to substantiate the contention of the husband,

is proved to be wrong by the evidence led by PW2.

11. Learned counsel appearing for the husband would

contend that evidence of PW2 is not worthy of acceptance as

NC: 2023:KHC:23685-DB MFA No. 455 of 2018

he has been cross-examined to demonstrate that he has led

evidence without examining the wife.

12. The Family Court has analysed the evidence on

record and has concluded that the evidence given by PW2 - the

doctor who is stated to have examined the wife is not worthy of

acceptance and it has noticed several discrepancies in the

medical records produced by him. The Family Court has also

taken note of the fact that the signature of the wife is not

forthcoming from the medical records and it is also forthcoming

that the signature of the attendant who is said to be present

while the wife was examined is also not forthcoming in the

records. On the other hand, the Family court has placed

reliance on the evidence of PW3 - the doctor who examined the

wife and the examination of the wife by the said doctor is not in

dispute. Based on the evidence of PW3 - the Doctor, the

Family Court has held that the marriage between the husband

and wife is not consummated.

13. This Court has considered the contentions raised at

the bar and the impugned judgment and decree.

NC: 2023:KHC:23685-DB MFA No. 455 of 2018

14. In the light of the contentions raised this Court has

re-examined the evidence on record. The family court has

considered the evidence of Dr.Mahalakshmamma, the doctor

from Tumkur hospital who admittedly examined the wife based

on the complaint of the husband. The examination has taken

place as per the requisition made by the police. Though the

doctor has not given any opinion on the gender, has opined

that she did not have a physical relationship. Thus the evidence

reveals that the marriage is not consummated.

15. The Family Court has also recorded the reasons as

to why the evidence of PW2 - the doctor who is said to have

physically examined the wife is disbelieved and accepted the

evidence of PW3. PW2 is Dr. Ashok Kumar. However, it is not

the case of the wife that Dr. Ashok Kumar examined her. It is

her case that Dr.Asha examined her. However, there is no

report submitted by Dr.Asha. The Family Court has noticed the

infirmities in the medical records with reference to the dates

mentioned therein and also the alleged date of examination of

the wife by the doctor. The husband has produced the records

issued by the hospital where it is not forthcoming that the wife

is examined in Vani Vilas Hospital at any point in time. The PW2

NC: 2023:KHC:23685-DB MFA No. 455 of 2018

is cross-examined by the husband has admitted that the

feature noticed by the doctor in Tumkaur which is recorded in

Ex-P10 does not enable the consummation of marriage.

16. This Court having gone through the reasonings

given by the Family Court is of the view that the Family Court

has rightly rejected the evidence of PW2 that she can

consummate the marriage. So far as the evidence given by

PW3 the doctor who has examined the wife is concerned, this

Court does not find any reason to disbelieve the evidence of

PW3. More so in a situation when the wife has not disputed the

fact that she is examined by PW3. However, the examination

by PW2 is seriously disputed and the doubt raised about the

credibility of the report of PW3 appears just in the backdrop of

evidence placed before the Court.

17. The Family Court has rightly accepted the evidence

of PW3 and has given a finding on account of the wife's

disability, the marriage is not consummated.

18. Section 12 of the Act, 1955 provides that in case the

marriage is not consummated owing to the deformity on behalf

of the spouse, then such marriage can be declared null and

NC: 2023:KHC:23685-DB MFA No. 455 of 2018

void under Section 12(1)(a) of the Act, 1955. This Court is of

the view that the husband can establish that wife is incapable

of discharging all her conjugal obligation on account of physical

disability and for that reason, the marriage is not

consummated.

19. Learned counsel for the wife at this stage submitted

that appropriate order be passed relating to the permanent

alimony for the wife.

20. This Court has perused the materials on record.

Before the Family Court, evidence is not led relating to the

income, assets or liability of the respective parties to the

proceeding. Under the circumstances, this Court is of the view

that this Court at this stage is not in a position to pass any

orders on the permanent alimony.

21. It is also stated that the petition is pending before

the Family Court where the wife is claiming maintenance under

Section 125 of the Criminal Procedure Code. Under the

circumstances, appropriate order will have to be passed in the

said proceedings. However, it is made clear that any

observations made in this appeal will not come in the way of

NC: 2023:KHC:23685-DB MFA No. 455 of 2018

the Family Court passing appropriate orders in a petition

seeking maintenance, as this court has not rejected the claim

for maintenance on merits.

22. For the reasons assigned above, this Court finds no

reasons to interfere with the impugned judgment and decree.

Hence, the following:

ORDER

(i) The judgment and decree dated 4.11.2017

passed by the Family Court, Tumakuru in

M.C.324/2013 is confirmed.

(ii) Appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

BRN